ARTICLE

ZERO TO 14.6 MILLION:
How the TLC Method Brought Justice to a No Offer Case

By J. Jude Basile

     It was in late November of 2001 when the phone in my home office rang and a lawyer on the other end of the line said “I can’t believe this, the defense claims they have 4 eye witness statements and a reconstruction that shows the accident was all my client’s fault. They won’t pay a dime, my client is horribly injured and I believe him when he says it was not his fault. Can you help me?” I asked when the accident had happened. When I was told almost a year ago, I hesitated. I then asked the caller, “How do you feel about the client?” He responded by proceeding to go on and on about what a wonderful man the client is and talked at length about his loving and supportive family.

     We knew we were dealing with a defendant and insurance company who were trying to cover their asses, that the entire defense story was dishonest and that it was wrong. I agreed to help on two conditions: that I personally meet with the client and his family at their home and spend about 3 hours with him and his family; and, that a psychodramatist/trial consultant (Katlin Larimer) accompany me. My future co-counsel agreed and we arranged a time for all of us to meet the following week at the client’s home.

THE INITIAL MEETING

     Our initial meeting with Rich Miller and his family took place at their home in Hayward, California, a blue collar community in the east San Francisco bay area. The Miller’s small, red, wood framed house was in a neighborhood of well maintained tract homes built in the 1950’s. It had 3 small bedrooms, 2 baths and was about 1200 square feet. He and his wife had recently inherited it from her father. An old van sat in front of the house and the cover on the spare tire read “The Lord’s Crusaders.” I thought “Oh no, religious fanatics!” but then stopped my self from forming any opinion and kept an open mind.

     We were greeted at the front door by a women in her mid 50’s. She reminded me of the people in the steel and coal mining towns of western Pennsylvania where I grew up. She was honest and straightforward in her talk and appearance. Upon seeing us at the door, her husband sat up in the hospital bed that was in the front room. He had been in that bed for eleven months except for doctors’ appointments, physical therapy, and bathroom breaks. He had just had surgery to reconnect his urethra that was severed when his pelvis was crushed between the defendants’ forklift and the side gas tank of the cab of the 18 wheeler he had been standing beside.

     Katlin Larimer and my co counsel were with me. We were dressed casually, not lawyer like. They commented that we did not look like lawyers and they were relieved. I thanked them and told them “I am a person first and a lawyer by profession.” I said “I don’t take a lot of cases because when I do, I try to really get to know my client, about his life, family and case, so much so, that it becomes as if it is my case with them.” They listened. I told them ”in order for me to do this I need to know you and you need to know who I am.”

     This introduction is very similar to what I do in voir dire. I must show the jury I am truly interested in them. I show them I care and can come into their world. I show them I will listen, hear and accept whatever they tell me. I begin this process when I first meet any new client.

     We spoke. I learned that Rich was born in the south and grew up in the east bay area. He met his wife Denise and married her when he was 18 and she was 17. She had become pregnant and they ran away and got married. They had 3 children and 5 grandchildren. Everyone worked. Rich had driven an 18 wheeler and then entered a private Christian ministry 11 years ago. He and his family would travel and sing at various religious retreats, mostly catholic. He had just renewed his truck license and returned to trucking when he was injured.

     Over the next hour and a half I listened to them and each of us shared about our lives. I told them of my family. I spoke of my feelings about religion and listened and listened. Katlin in her unique intuitive way knew just where to direct the discussion of Rich and Denise’s life. We spoke of Rich’s current physical and mental condition before we even began talking about how the injury occurred.

     Katlin then directed a reenactment of the events from the night before the accident, to Rich’s leaving for work the morning he was injured. Although Rich was physically unable to demonstrate what was happening, Katlin was able to have him co-direct the action from his bed. I played various roles, as did my co counsel, Rich’s wife and daughter. I put myself in the role of all the players and began to understand who the players were. I was Rich as he was crushed. I was the 18 year old forklift driver/ janitor. I was Rich as he prepared to go to work the morning he was injured, a scene that would be brought to life in closing argument. A scene that was developed at the first meeting.

     This early meeting helped develop a bond and build trust among the whole team who would be working together. Everything we did and would do was focused on one audience, the jury.

THE PROCESSING

     After the initial meeting and reenactment, Katlin and I met with my co- counsel at our hotel. We processed the work we had done and planned the work ahead. We reviewed how we each felt about the client and the case. We did another reenactment of some scenes of liability and role played the management of the steel company defendants. We choose to begin discovery with video taped depos of the forklift operator and defense “eye witnesses”. We planned to do this very soon and then use clips of the videos to play for a focus group to test the reaction to the defendant’s story. We also discussed damages and how we would focus on non-economic damages.

THE DISCOVERY

     The first deposition we took was of the defendant’s forklift operator. English was not his first language so we used an interpreter. The process was tedious, but setting the various scenes of his life made him open up to the truth or at least some of the truth. We learned he had come by himself from Mexico when he was 16. He worked as much as 14 hours a day at the steel company and when he turned 18 he asked to start driving the forklift. He supported his grandparents in Mexico. He described his on the job forklift training program that did not comply with any industry standards. He admitted he was primarily a janitor and received his certification card the afternoon Rich was injured. He showed me the certification card and it was signed by the risk manager.

     The other “eye witnesses” were long-time company foremen who each had families to support. Video taping these depositions was invaluable. It gave us the ability to edit and play for a large focus group pieces of each depo so that we could get their feedback, their evaluations of the testimony and proposed areas for us to develop for cross examination.

     The next deposition we took was of the risk manager. He was a former insurance adjuster. He admitted he was hired because the steel company’s claims had increased. He was very willing to talk of his expertise in safety and accident investigations. His story of being hired by the president of the company as the first “risk manager in the company’s history to protect the assets of the company” gave us some real excitement. He admitted filling out the certification card of the forklift operator after Rich was injured. He also said he had never driven a forklift but could certify an operator as qualified.

     The defendant never made an offer and spent tens of thousands of dollars and hundreds of hours trying to defeat us. Their liability theme was apparent. The defendant will spend hundreds of thousands of dollars to avoid responsibility but will spend nothing to avoid injury. The defendant’s training program was totally inadequate.

     The defense then said they would produce their main forklift operator who actually trained the operator involved in injuring Rich. This man argued that he had spent a hundred hours training the operator. We took him through his typical day at the time he supposedly was training the forklift operator. He made it clear it was a very busy time at the steel plant and it became obvious that he could not have spent the time he claimed in training. Again, warming up the witness and putting him in a live scene during the deposition was the key.

EXPERTS

     I always have a thorough understanding of the medical records and injuries before I meet with the experts. I also have drafts of the demonstrative exhibits prepared before my meeting and the meeting takes place at least 3 months before the initial trial date. An interesting question I now always ask is why they became an expert in this field. In response to this question, our rehab doctor told me that back in high school he saw two of his friends suffer traumatic spinal injuries. This motivated him to become the first graduate from Georgetown in Rehabilitation Medicine. He decided to devote his life to making life as productive as possible for people with spinal chord injuries. Interestingly, he told me that no one had ever asked him this question before.

SCENES AND EXHIBITS FOR TRIAL

     We spent many hours with Rich’s family, with and without him present. One example of our work with them was when we traveled to a small town in the Central valley of California and spent an afternoon with Rich’s daughter and son-in-law. The son-in-law told us a wonderful story of how he did not have much of a father and how Rich took him as truly a son. Through Katlin’s direction we went to a scene of the two camping speaking of God and life that demonstrated the depth and richness of the relationship.

     We found a small model of the truck Rich was driving that we kept on either the jury rail or the witness stand throughout the trial. I spent time the first day we entered the courtroom determining what in the courtroom would represent the gas tank Rich was crushed against. We decided to use the end of counsel table as the gas tank. The jury could look at the small model of the truck and I would direct each witness to place me in position on the gas tank (the end of counsel table) as they would testify. This anchored the truck in the courtroom and presented a visual queue for the jurors to visualize the truck.

     The most powerful demonstration came when Rich took the stand. We had discussed whether he would testify from the 3 wheel cart he used to get around or try to testify from the witness stand. One afternoon while the jury was not present, we had Rich get out of the cart and try to walk and climb the 3 steps to the witness stand. He did it and said he wanted to testify from the stand “like everyone else”. He had been in his cart each day and with the exception of bathroom breaks the jury had not seen him out of his cart. I was concerned his slow deliberate and painful walk to the stand might be viewed as manipulative by the jury.

     Rich was the last witness. He slowly climbed out of his cart and hobbled towards the witness stand with a 4-legged cane. He stopped, balanced himself on the clerk’s desk, raised his hand and took the oath. He turned and with one hand on the witness box and the other on the cane climbed one step at a time into the witness seat. I was following with a pillow I placed on the witness seat. The jurors were riveted to this whole scene. Rich was out of breath as we began.

“Rich, How you doing?” I said in a quiet voice.

He responded in the strongest voice he could muster, but still a little hoarse. “I’m fine”

“Rich, whose idea was it to testify from the witness stand?”

“Mine”

“And why did you want to testify from the witness stand?”

He slowly turned towards the defense table and replied after a pause, “Because I wanted to show them what I can do”

     We had not rehearsed any of this beginning but yet we had rehearsed all of it. The many hours I had spent with Rich and the relationship we built allowed me to talk open and honestly with him. It was a powerful moment of a man trying his best to be proud of what he could do and not complaining about how difficult things are.

     The direct testimony of all the damage witnesses was each presenting a different scene or two; Rich and Denise, Rich’s wife. We called his 3 children, and his neighbor. None testified for more than 15 minutes. Large photos of happy scenes were projected on a screen as they spoke.

     When Denise testified, (she had a claim for loss of consortium,) we showed pictures of their three weddings. They were so in love with each other that they had had three separate ceremonies over their thirty-eight years of marriage. Rich always said “I’ll never divorce her but, I’ll marry her again and again” Rich was not present when she testified and we went through her feelings towards him and what life is like now. We ended with a recent picture of the whole family around Rich in a wheelchair all smiling and happy. I am a big proponent of not presenting doom and gloom in a serious injury case. I just let the doctors explain the injury and show what an effort the family has made to cope.

CLOSING AND VERDICT

     Each day throughout the trial I would look at my jury chart and have a silent conversation with each juror. I might ask about how their child- care was going or how their work is getting along without them. I would imagine their conversations each day about how the trial was going. In the morning before the jury enters the courtroom I stand in front of the jury box and look at each empty seat. I silently greet them and talk with them as though they are there and we are friends. Having done this throughout the trial, the night before I do a role reversal with each and ask what they need to know. The answers were all the same. What do we need to do? How do we do it? How can I justify to my friends why I did it?

     In summary, for liability we told the jury about how the defendant company spent so much time and money to avoid responsibility and very little in safety training and management.

     Damages were a scene of Rich leaving for work in the morning the day he was injured. As he sat in his car about to drive to work, I told the jury to imagine a scene of the president of the steel company driving up in a big black car. The president gets out of the car and tells Rich what would happen that day. How an inexperienced untrained janitor would crush his pelvis and last night was the last night he would ever be able to lay next to wife. I went through how his life was changed. The president made an offer to Rich of 1 million a year for the rest of his life to live this way. I looked at the jury and asked them “ Do you think Rich would take this offer?” Did they give him a choice? No.” I walked over to the defense counsel table and asked the corporate representative “Would you take this offer? A million a year to live like Rich?”

     I came back to the jury and ended where I began voir dire. I told them about the respect and trust I had for juries and handed the case to them.

     Verdict: $14.6 million, including $2.5 economic, and $2.5 loss of consortium and $9.6 million pain and suffering. The jury did find Rich 34% responsible so the net judgment with prejudgment interest and costs adds up to over $10 million. There were no offers and a “strong recommendation” by the defense to “try this case”. It was our recommendation, too.